New gay marriage ruling means high court review likely

CINCINNATI -- The rush toward gay marriage across the U.S. hit a roadblock Thursday when a federal appeals court upheld laws against the practice in four states, creating a split in the legal system that increases the chances the Supreme Court will step in to decide the issue once and for all.

The cases decided were from Ohio, Michigan, Kentucky and Tennessee.

Breaking ranks with other federal courts around the country, the 6th U.S. Circuit Court of Appeals ruled 2-1 states have the right to set rules for marriage and that changing a definition that dates to "the earliest days of human history" is better done through the political process, not the courts.

"Surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another," said Circuit Judge Jeffrey Sutton, writing for himself and a fellow George W. Bush appointee, while a Bill Clinton appointee dissented.

The ruling ran counter to a rapid string of victories for the gay-rights movement over the past few months that have now made same-sex marriage legal in at least 30 states.

In fact, four other U.S. appeals courts in other regions of the country ruled in recent months that states cannot ban gay matrimony.

Cincinnati attorney Al Gerhardstein, who represented gay plaintiffs in two of the cases, said he was disappointed and will appeal to the nation's highest court.

The president of pro-gay marriage group Freedom to Marry, Evan Wolfson, blasted the ruling as being "on the wrong side of history" and out of step with the courts and the majority of Americans.

"This anomalous ruling won't stand the test of time or appeal," he said in a statement.

In its ruling, the appeals court rejected one of the main arguments leveled against gay marriage, saying that same-sex couples are as capable as heterosexual ones of effectively raising children.

Sutton also suggested the same argument that says there is a constitutional right to gay marriage could be used in support of polygamy or some other combination.

"If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage," he wrote.

Attorneys could seek a review of the panel's decision by the full 6th Circuit. But because it is made up mostly of Republican-appointed judges, they will probably try to move the case straight to the Supreme Court, for a definitive ruling on whether gays have a fundamental right under the U.S. Constitution to marry.

The dissenting judge suggested that might have been the goal of Sutton and Judge Deborah Cook in their ruling.

"Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split," Judge Martha Craig Daugherty wrote.

She said getting the case to the Supreme Court would put "an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threaten."

In October, the Supreme Court turned away appeals from five states seeking to uphold their same-sex marriage bans. The ruling had the effect of expanding gay marriage across the U.S.

Justice Ruth Bader Ginsburg later explained the lack of a split in the appeals courts made Supreme Court review of the issue unnecessary.

Thursday's ruling out of Cincinnati changes that dynamic.

The big question now is whether an appeal can be ready for the justices in time for consideration this term. Generally, the court would have to decide by mid-January whether to hear the case in time for a decision in June.

Otherwise, the case would be pushed back to the following term and probably not decided until June 2016.

The ruling followed more than 20 court victories for supporters of same-sex marriage since the Supreme Court struck down part of the federal Defense of Marriage Act last year.

Michigan's and Kentucky's cases stemmed from rulings striking down each state's gay marriage ban. Ohio's two cases focused on the state's refusal to recognize out-of-state gay marriages because of its own ban, while Tennessee's was narrowly focused on the rights of three same-sex couples.

Greg Bourke, one of the Kentucky plaintiffs, called the ruling the "ultimate disappointment."

"We're definitely going to fight this, one way or the other," said Bourke, who married his partner, Michael DeLeon, in Canada.

Other plaintiffs include a Cincinnati man who wants his late husband listed as married on his death certificate so they can be buried next to each other in a family-only plot and a Tennessee couple who want to be listed on their newborn daughter's birth certificate.

The 9th Circuit, based in San Francisco, the 10th Circuit in Denver, the 4th Circuit in Richmond, Virginia, and the 7th Circuit in Chicago have all overturned statewide gay marriage bans in the South, the Midwest and the West since the summer.